Criminalizing China

79 Pages Posted: 9 Jun 2020 Last revised: 25 Aug 2020

See all articles by Margaret K. Lewis

Margaret K. Lewis

Seton Hall University - School of Law

Date Written: August 25, 2020

Abstract

The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By June 2020, the Federal Bureau of Investigation had approximately two thousand active investigations under the Initiative.

People and entities with connections to the PRC’s governing party-state structure have engaged in trade secret theft and other crimes under U.S. law. The Department of Justice is not making up a threat. It is, however, framing that threat in a problematic way.

This Article argues that using “China” as the glue connecting cases prosecuted under the Initiative’s umbrella creates an overinclusive conception of the threat and attaches a criminal taint to entities that possess “China-ness” even if they do not have a nexus to the PRC party-state. The Article further contends that, when assessed in light of the goals of deterrence, incapacitation, rehabilitation, and retribution, it is worrisome that the prosecution and punishment of people and entities rests in part on a connection with “China.” A better path is to discard the “China Initiative” framing, focus on cases’ individual characteristics, and enhance the Department of Justice’s interactions with non-governmental experts.

Keywords: China Initiative, People's Republic of China, Criminal Law, Department of Justice

Suggested Citation

Lewis, Margaret K., Criminalizing China (August 25, 2020). Journal of Criminal Law and Criminology, Vol. 111, No. 1, 2020, Seton Hall Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3600580

Margaret K. Lewis (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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